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Mpawinayo v. State

Court of Criminal Appeals of Tennessee, Nashville

June 1, 2018

LEOPOLD MPAWINAYO
v.
STATE OF TENNESSEE

          Assigned on Briefs May 16, 2018

          Appeal from the Criminal Court for Davidson County Nos. 2013-D-2982, 2013-D-3155 Mark Fishburn, Judge

         The Petitioner, Leopold Mpawinayo, appeals the Davidson County Criminal Court's denial of his petition for post-conviction relief from his 2015 convictions for two counts of violating the habitual motor vehicle offender (HMVO) law and his effective six-year sentence. The Petitioner contends that the court erred by denying relief because he received the ineffective assistance of counsel. We affirm the judgment of the post-conviction court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

          Ryan C. Caldwell, Nashville, Tennessee, for the appellant, Leopold Mpawinayo.

          Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney General; Glenn Funk, District Attorney General; and Matthew Thomas, Assistant District Attorney General, for the appellee, State of Tennessee.

          Robert H. Montgomery, Jr., J., delivered the opinion of the court, in which Norma McGee Ogle and Alan E. Glenn, JJ., joined.

          OPINION

          ROBERT H. MONTGOMERY, JR., JUDGE.

         This case arises from the Petitioner's two convictions after a bench trial for violating the HMVO law. The trial court sentenced the Petitioner to consecutive three-year sentences to be served on probation, and the Petitioner did not appeal. The trial court ultimately revoked the Petitioner's probation after determining that he had violated the conditions of his release by being arrested for four counts of aggravated assault. The court ordered the Petitioner to serve one year in confinement at 100% service, followed by six years' enhanced supervised probation. The Petitioner appealed, and this court affirmed the trial court's determinations. See State v. Leopold Mpawinayo, No. M2016-00778-CCA-R3-CD, 2016 WL 7155056 (Tenn. Crim. App. Dec. 7. 2016), no perm. app. filed.

         On May 6, 2016, the Petitioner filed the instant petition for post-conviction relief, alleging that he received the ineffective assistance of counsel because trial counsel did not request discovery materials, did not file a motion to suppress evidence, and "refused to appeal" his convictions. The Petitioner also alleged that his privilege against self-incrimination was violated, that the prosecution failed to disclose favorable evidence, that his convictions were obtained with the use of "illegal evidence, " and that he should not have been convicted because he had a valid driver's license at the time of the offenses. On April 28, 2017, post-conviction counsel filed an amended petition, alleging that trial counsel provided ineffective assistance by failing to communicate adequately, by misleading the Petitioner about the likelihood of conviction, and by failing to appeal the Petitioner's convictions. The amended petition also alleged that the Petitioner did not understand the charges and believed the charges would be dismissed because he had a valid driver's license at the time of the offenses.

         At the post-conviction hearing, the Petitioner testified that he retained trial counsel and that counsel stated the Petitioner "would win the case" because the Petitioner had a driver's license at the time of the offenses. The Petitioner said that counsel filed "a motion to do everything" but that counsel wanted him to accept a plea offer. The Petitioner said that the offer counsel presented was for two years' probation. The Petitioner said that counsel agreed he had a valid driver's license and that as a result, the Petitioner rejected the offer.

         The Petitioner testified that he understood limited English and that it took time to read and write English. He said that on the day of the trial, no time existed for trial counsel to read the waiver of a jury trial form but that he and counsel discussed choosing a bench trial. The Petitioner said that counsel believed the trial court would dismiss the case because the Petitioner had a valid driver's license.[1] The Petitioner said that although he testified at the trial, he did not understand what was happening. The Petitioner said that counsel did not explain why the court found him guilty and that after the trial, counsel initially did not return his telephone calls or respond to text messages inquiring about an appeal. The Petitioner said that counsel answered one of his telephone calls and stated counsel could file an appeal. The Petitioner said no appeal was filed.

         On cross-examination, the Petitioner testified that he and trial counsel met at counsel's office approximately four times and that although counsel stated he could win the case during their first two meetings, counsel presented the plea offer during their third meeting. The Petitioner said that he rejected the offer because it involved probation and because he was innocent of the charges. The Petitioner denied that counsel informed him that obtaining a valid license after his arrests was irrelevant to whether the Petitioner had a valid license at the time of the offenses. The Petitioner believed it was unfair to proceed to trial on the charges because he had obtained a valid license at the time of the trial. The Petitioner denied trial counsel called or sent him text messages after the trial to discuss an appeal. The Petitioner said that counsel called him before sentencing to discuss what would occur at the hearing.

         Trial counsel testified that he initially represented the Petitioner relative to a fourth offense driving under the influence (DUI) charge and that the Petitioner later retained his services relative to the HMVO charges. Counsel said that he spoke with the prosecutor about a plea agreement and that the prosecutor would not agree to resolve the HMVO violations unless an agreement also resolved the DUI charge. Counsel said that he explained to the Petitioner the prosecutor's position regarding a plea agreement and that he advised the Petitioner the sentences would most likely be imposed consecutively because the Petitioner had been on bond at the time of the HMVO charges. Counsel said that the Petitioner's focus relative to the fourth offense DUI charge was that the offense occurred approximately thirty days before the ten-year expiration of the previous DUI enhancement conviction. Counsel said that he agreed with the Petitioner that the DUI charge was unfair but that the problem was the statute. Counsel said the Petitioner "refused to listen." Counsel said that he and the Petitioner reviewed the relevant law and a flow chart counsel created and that he explained to the Petitioner that the prosecutor would not agree to dismiss any charge that ...


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